M. P. Moller, Inc. v. Farley

219 A.D. 750

Opinion

Judgment modified by inserting a provision granting permission nunc pro tunc to bring the action against the receiver, and by providing that the recovery of either damages and costs, or damages, interest and costs, shall run against only the defendants Parley, as receiver, and The Parash Theatre Co., Inc., and as so modified unanimously affirmed, without costs. Present — Cochrane, P. J., Van Kirk, Hinman, McCann and Davis, JJ.; Davis, J., concurs for modification and affirmance but does not regard it necessary to enter a nunc pro tunc order granting leave to sue the receiver, he having appeared, answered and gone to trial without raising the question. (Hubbell & Curran v. Dana, 9 How. Pr. 424; Hackley v. Draper, 4 T. & C. 614; affd., 60 N. Y. 88; Pruyn v. McCreary, 105 App. Div. 302; affd., 182 N. Y. 568; Matter of Young, 7 Fed. 855; Naumburg v. Hyatt, 24 id. 898, 901.)